The High Court has refused to stop the prosecution of a retired garda facing 77 charges of indecent assault, finding that he had not established a real or serious risk that he would be denied a fair trial.
The application sought to restrain the Director of Public Prosecutions from proceeding with the charges, which relate to two complainants and are before the Dublin Circuit Criminal Court. The allegations concern events between 1978 and 1986. They remain allegations; the High Court did not determine guilt or innocence.
The applicant argued that his cognitive impairment, delay and the loss or unavailability of potential witnesses would make a fair trial impossible. Medical evidence included a diagnosis of atypical Alzheimer’s disease. The experts disagreed about the extent of his impairment and his ability to participate in a trial. One psychiatrist considered him unfit to be tried; another considered him fit, while accepting he might need support and breaks.
The judge said the medical evidence contained conflicts, including concerns about the reliability of a collateral history and questions raised by test results about the applicant’s effort. The applicant bore the burden of establishing prejudice. The court was not satisfied that the evidence showed sufficient harm to his fair-trial rights. It said a fitness-to-be-tried application could be made to the trial judge under section 4 of the Criminal Law (Insanity) Act 2006. The High Court did not decide that question.
On the missing-witness ground, the judge was not persuaded that the unavailable witnesses created an impediment to the defence. Some witnesses initially thought unavailable had been located and had provided statements; the judge noted that evidence from one available witness might support the applicant and contradict a complainant. The applicant had not sufficiently explained how the evidential gaps prejudiced his defence. This ground concerned one complainant; the other was not addressed under it.
The court also rejected the delay arguments. It found that the time taken to investigate and bring the case was not shown to be unreasonable in the circumstances. Complainant delay was not a separate basis for stopping the trial; the question was whether the delay created a real risk of an unfair trial.
The judge concluded that none of the grounds, considered individually or together, justified stopping the prosecution. The judicial-review application was dismissed, and the case was to proceed to trial. The trial judge would address any applications or difficulties that arose during the proceedings.